AP President Focuses on White House Claims about OBL Anniversary Threats

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A lot of people are pointing to this Bob Schieffer interview of AP President Gary Pruitt because, later in the interview, Pruitt claims seizing the AP’s records without narrowing the scope or notifying the AP is “unconstitutional.” While that might make an interesting — though probably unsuccessful — argument if the AP takes this to court (note, Schieffer also asked whether the White House was trying to intimidate the AP, which seems the only basis for making a claim about constitutionality), I actually wanted to point to how Pruitt described the leak.

He emphasizes something that I pointed to here: the AP believed (or now says it believed) this was newsworthy because the White House had repeatedly said the government knew of no credible threat tied to the anniversary.

Pruitt: It was a very big story. And while the Justice Department hasn’t told us this is the case, we know there’s an announced public investigation to leaks in this case the focus was on this story. It was a story that only AP had. AP obtained knowledge that the US had thwarted an al Qaeda plot to place a bomb on an airliner bound for the United States. And it was round about the one, the year anniversary of the killing of Osama bin Laden.

Schieffer: So this was good news?

Pruitt: This was very good news. But strangely, at the same time, the Administration, through the Press Secretary and the Department of Homeland Security were telling the American public that there was no credible evidence of a terrorist plot related to the anniversary of the killing of Osama bin Laden. So that was misleading to the American public. We felt the American public needed to know this story.

Schieffer: You got this story, at first the people that gave it to you asked you to hold it for a certain time.

Pruitt: Yeah, so what happened was we got this story, we went to the government — the White House, intelligence agencies. They said, “there’s a national security risk if you run this, if you go with this story at this time.” We respected that. We acted responsibly. Withheld the story. We held it for five days. On the fifth day, we heard from high officials in two parts of the government that the national security issues had passed. And at that point we released the story.

Schieffer: Am I correct in saying that when you decided finally to release it then you got word that the White House did not want it released because they wanted to announce it themselves?

Pruitt: The White House wanted to, wanted us to hold it another day because they wanted to announce this successful foiling of the plot.

Schieffer: So they didn’t want to get scooped?

Pruitt: I guess! They didn’t tell us their motive, but that certainly seemed that way to us. We didn’t think that was a legitimate reason for holding the story. The national security issues had passed, we released this story.

Schieffer: And if memory serves the top counterterrorism official at the White House went on television the next morning and told the story.

Pruitt: Yes. The Administration was very aggressive in telling the story. [my emphasis]

What Pruitt is referring to, in part, is that Jay Carney introduced his April 26, 2012 press briefing by offering up the information that there were not threats tied to the OBL anniversary.

On a second matter, I just wanted to let you know that as part of his regular briefings on homeland security and counterterrorism, the President met today with members of his national security team to review the threat picture as we head into the anniversary of the bin Laden takedown.

At this time, we have no credible information that terrorist organizations, including al Qaeda, are plotting attacks in the U.S. to coincide with the anniversary of bin Laden’s death. However, we asses that AQ’s affiliates and allies remain intent on conducting attacks in the homeland, possibly to avenge the death of bin Laden, but not necessarily tied to the anniversary.

The President thanked his team and directed them to continue taking all necessary measures to protect the American people. [my emphasis]

Note the timing: this announcement came 2 days after Robert Mueller had an unscheduled 45-minute meeting in Yemen, where I suspect he picked up the UndieBomb that had been turned over several days earlier. So when Carney said this, UndieBomb 2.0 (to the extent it was a real plot in the first place) had already been rolled up.

And conflicting claims about threats must be what the AP told the White House was newsworthy, because — even though it played a fairly minor part of the original AP story — it is what John Brennan emphasized when explaining why he had to have a conference call that would lead to Richard Clarke figuring out the plot was actually a sting.

I said there was never a threat to the American public as we had said so publicly, because we had inside control of the plot and the device was never a threat to the American public.

[snip]

I — I — what I’m saying is that we were explaining to the American public why that IED was not in fact a threat at the time that it was in the control of individuals. When — when we say positive control, inside control, that means that we (inaudible) that operation either environmentally or any number of ways. It did not in any way reveal any type of classified information. And I told those individuals and there are, you know, transcripts that are available of that conversation, “I cannot talk to you about the operational details of this whatsoever.”

I’m still not entirely why this was so sensitive to the White House. As I’ve noted, there were several possible ways for Brennan to explain the discrepancy away that wouldn’t have outed their insider.

I think there are several possibilities, which I’ll lay out in a follow-up post. But one detail seems clear: the question of whether and why the Administration was sending mixed signals about the anniversary threat is the bone of contention here.

Did AP Learn about Fake UndieBomb 2.0 because Real Marshals Deployed to Prevent It?

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In my next post, I’m going to revisit this post, where I showed 372 days ago that at least one or two of the major early sources for the most damning information on UndieBomb 2.0 came from non-US based sources.

But before that, check out this passage from the ABC story that first revealed UndieBomb 2.0 was an inside job.

The plot appeared timed to coincide with the first anniversary of Osama bin Laden’s death, but the bomber did not get as far as purchasing plane tickets or choosing a flight. As ABC News first reported last week, the plot led the U.S. to order scores of air marshals to Europe to protect U.S.-bound aircraft. Flights out of Gatwick Airport in England received 100 percent coverage, according to U.S. officials.

While I haven’t been able to find the reporting in question [update: see below], at least according to the article, ABC had been told the previous week — around the same time the AP first learned about the purported UndieBomb 2.0 plot — that there was a massive effort on the part of the US Air Marshals to cover a bunch of US-bound planes …

… that the Intelligence Community knew had no UndieBomb on board.

Read more →

Did Tommy Vietor Hang Out CIA on UndieBomb 2.0?

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The same day that the White House released 94 pages of Benghazi emails, which not only show that most at CIA supported the talking points used by the Administration but also include annotations of the CIA roles involved that reveal far more about CIA’s structure than any FOIA response I’ve ever seen, Tommy Vietor went on the record about UndieBomb 2.0 with both the WaPo and MSNBC. It appears he did so to reinforce the fear-mongering language Eric Holder used (though like Holder, Vietor doesn’t explain why John Brennan got a promotion after contributing to such a damaging leak). He said this to WaPo.

Vietor said that it would be a mistake to dismiss the unauthorized disclosure because al-Qaeda failed to carry out its plot.

“We shouldn’t pretend that this leak of an unbelievably sensitive dangerous piece of information is okay because nobody died,” he said.

But the WaPo account also seems to serve (like the Benghazi email dump does) to place blame on CIA.

It answers a question I hinted at yesterday: whether the CIA and White House were on different pages on what to do with the AP story. Reportedly, after AP had given the CIA time to kill Fahd al-Quso (the WaPo doesn’t mention that was the purpose of the delay), CIA’s Mike Morell told the AP the security issue had been addressed, but asked for one more day. As AP considered that request, the White House overrode that discussion.

Michael J. Morell, the CIA’s deputy director, gave AP reporters some additional background information to persuade them to hold off, Vietor said. The agency needed several days more to protect what it had in the works.

Then, in a meeting on Monday, May 7, CIA officials reported that the national security concerns were “no longer an issue,” according to the individuals familiar with the discussion.

When the journalists rejected a plea to hold off longer, the CIA then offered a compromise. Would they wait a day if AP could have the story exclusively for an hour, with no government officials confirming it for that time?

The reporters left the meeting to discuss the idea with their editors. Within an hour, an administration official was on the line to AP’s offices.

The White House had quashed the one-hour offer as impossible. AP could have the story exclusively for five minutes before the White House made its own announcement. AP then rejected the request to postpone publication any longer.

This must be the crux of the animosity here. CIA told AP the danger had passed (though according to some reports, our informant was still in Yemen). At that point, the AP should have and ultimately did feel safe to publish. But then the White House made this ridiculous request, effectively refusing to let AP tell this story before the White House had a shot at it.

Which is why this claim, from Tommy Vietor, is so absurd.

But former White House national security spokesman Tommy Vietor, recalling the discussion in the administration last year, said officials were simply realistic in their response to AP’s story. They knew that if it were published, the White House would have to address it with an official, detailed statement.

“There was not some press conference planned to take credit for this,” Vietor said in an interview. “There was certainly an understanding [that] we’d have to mitigate and triage this and offer context for other reporters.”

Jeebus Pete! If your idea of “mitigating and triaging” AP’s fairly complimentary story is to make it far, far worse by hinting about the infiltrator, you’re doing it wrong!

Vietor, who presumably had a role in setting up the conference all at which Brennan tipped off Richard Clarke (though according to Brennan, he did not sit in on the call), insists to MSNBC that telling someone we had “inside control” of this plot does not constitute a gigantic clue that the entire plot was just a sting.

Tommy Vietor, then chief national security spokesman for the White House, disputed the idea that Brennan disclosed sensitive details in his background briefing and said  it was “ridiculous” to equate Brennan’s use of the  phrase  “inside control” with having an “informant.”

It’s a nonsense claim, of course. Someone fucked up the “mitigating and triaging” process, and that’s what made this leak so dangerous, not AP’s initial story. But, presumably because AP didn’t let White House tell the official story before they reported their scoop (and did they plan on telling us all we had inside control on the op if they got to tell the story first?!?), the AP has, as far as we know, borne the brunt of the investigation into the leak.

For the moment let me reiterate two more details.

It appears that Vietor is blaming CIA for the way this went down. And guess what? The guy who blathered about “inside control” has now taken over the CIA.

Then there’s this. Eric Holder noted yesterday that the investigation into David Petraeus for leaking classified information — understood to be limited to his mistress Paula Broadwell, mind you — is ongoing. That means the FBI interview he had on April 10 was not sufficient to answer concerns about his involvement in leaking classified information.

It’s interesting this is coming down to a conflict between White House and CIA, isn’t it?

Dear Eric Holder: You’re Doing Recusal Wrong

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Let me start this post by saying I think it is absolutely appropriate for Eric Holder to have recused himself from the UndieBomb 2.0 investigation, in part because — as someone read into the UndieBomb 2.0 operation, he was interviewed by the FBI (though so was James Cole, who is now in charge of the investigation), and he turned over his own phone contacts to the FBI — but also because top Administration officials like John Brennan at least should be under close scrutiny in this investigation.

Nor do I think, in his recusal, Eric Holder did anything in bad faith. I have zero reason to believe Holder is tampering with this investigation, in any way shape or form.

But Jeebus, Holder is doing this entire recusal thing wrong.

That’s true, first of all, because with a rabid Congress (at the time he recused from the investigation and now) accusing him of wrongly delegating this investigation to Ronald Machen in an investigation that could net incredibly powerful people as suspects, Holder did not write his recusal — or a delegation of authority of Attorney General powers — to James Cole, who is overseeing the investigation.

Now, Holder claims not to remember whether he memorialized his recusal in past cases, including the John Edwards investigation — the most high profile case in which he has recused. And though George Holding, who conducted that investigation and now represents the Raleigh, NC, area in Congress, was in the room, I’m not sure they clarified whether he had written anything down there, either. Holder was, however, very clear about what authorities he delegated to Patrick Fitzgerald when he investigated the John Adams Society, which led to the prosecution of John Kiriakou, having sent 3 letters (1, 2, 3) memorializing the limits of Fitz’ authority.

I think part of the problem is that Holder didn’t really appoint special counsels to investigate this matter, even while he made a big deal of appointing the people who — US Attorney for DC Ronald Machen’s appointment rather then US Attorney for Eastern District of VA Neil MacBride aside — would have been investigating it anyway. Dumb. Congress was screaming for some kind of formality, and Holder didn’t establish that formality.

And then there’s the journalist-subpoenaing precedent of the Plame investigation where Fitz several times got letters clarifying his authority. The first of those reads,

By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

This came in handy later in the investigation when Libby’s lawyers challenged Fitz’ authority.

Then, Holder’s recusal hasn’t been very strict. Most troublingly, Eric Holder reviewed the letter James Cole sent to the AP (though Holder saw a draft which, according to his press conference, included things like details on the specific scope of the subpoena that don’t appear in the final letter). NPR’s Carrie Johnson asked him about this.

Johnson: Is that normal practice when you’re recused from a case?

Holder: No, I just wanted to see the le–I saw I mean I saw saw the draft letter this morning. And I just wanted to have an opportunity to see what it looked like so I’d have at least some sense of the case in case there were things in the letter that I could talk about with the press.

Reviewing this letter — particularly before changes got made to it!! (changes which appear to have deprived the AP of full notice of the call record grab) — simply isn’t appropriate for someone recused from the case!

Again, I’m not suggesting malice here.

But the AP has already — rightly, in my opinion — challenged whether DOJ complied with its own guidelines on media subpoenas. In particular, AP complained that they had not been given notice and an opportunity to cooperate. That’s one of the guidelines that requires AG involvement.

Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

Yet the guy who signed this subpoena and with it signed off on the claim that alerting AP to the subpoena would do grave damage to the investigation  — James Cole — apparently has no piece of paper giving him authority to sign it.

If DOJ ultimately decides to charge the AP’s sources, if that person has the kind of legal representation DC bigwigs often have, I fully expect them to challenge every bit of their prosecution. After all, by subpoenaing the AP, Cole claimed that DOJ could not get the information from any other source. So if AP’s sources are indicted, they can rest assured that their prosecution went through this bottleneck of an Acting AG who had no paperwork to prove he had the authority to sign off on the claims he was making to get information he was certifying was absolutely necessary to find them. And from this subpoena forward, everything else will be fruit of a tainted AG, at least if you’ve got fancy lawyers.

Dumb.

One last thing. Also in today’s hearing, Holder admitted that it probably would have been a good idea to write down this recusal thing in public. Which, if they do ever charge AP’s sources and if said sources have the resources to make this obvious challenge, they’ll cite in court to document that even the guy who delegated this authority thinks it would be smarter if he did so in writing.

Seriously, this entire recusal process has been an own goal. As I said, I don’t think DOJ is pulling anything fishy. But the entire point of recusing is to ensure there’s proof nothing fishy happened. And in this case, DOJ has anything but.

There’s a Place for Resolving Disputes, and the Administration Chose Not To Use It

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As I was writing my flurry of posts on the AP call record seizure yesterday, former National Security Council Spokesperson Tommy Vietor and I were chatting about the facts of the case on Twitter. He disputes two of the AP’s claims: that they held the story as long as the Administration wanted them to, and that the White House had planned an announcement.

Screen shot 2013-05-15 at 11.22.38 AM

 

Now, as I have said in the past, I’m somewhat skeptical of the White House’s claims, given that their story changed as the story was blowing up. Furthermore, the White House had done a big dog-and-pony show on a similar operation — the thwarting of the Toner Cartridge plot in 2010, which was also tipped by a Saudi infiltrator. So it is reasonable to believe they planned to do another one in 2012.

That said, note that the AP’s latest version of this is rather vague about whom they were discussing the story with, referring only to “federal government officials,” whereas previously they had referred to “White House and CIA” requests.

So there may well be some confusion about what happened, or it may be that David Petraeus’ CIA was planning a dog-and-pony show that the White House didn’t know about. No one seems to dispute, however, that the AP did consult with the White House and CIA, and did hold the story long enough to allow the government to kill Fahd al-Quso, all of which the Administration seems to have forgotten.

In short, behind the broad call record grab, there’s a legitimate dispute about key details regarding how extensively the AP ceded to White House wishes before publishing a story the Attorney General now claims was the worst leak ever.

But there’s a place where people go to resolve such disputes. It’s called a court.

And as this great piece by the New Yorker’s counsel, Lynn Oberlander on the issue notes, one of the worst parts of the way DOJ seized the AP records is that it prevented the AP from challenging the subpoena — and the details that are now being disputed — in court.

The cowardly move by the Justice Department to subpoena two months of the A.P.’s phone records, both of its office lines and of the home phones of individual reporters, is potentially a breach of the Justice Department’s own guidelines. Even more important, it prevented the A.P. from seeking a judicial review of the action. Some months ago, apparently, the government sent a subpoena (or subpoenas) for the records to the phone companies that serve those offices and individuals, and the companies provided the records without any notice to the A.P. If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody’s guess—there is no federal shield law that would protect reporters from having to testify before a criminal grand jury—but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.

I obviously don’t know better than Oberlander what would have happened. But I do suspect the subpoena would have been — at a minimum –sharply curtailed so as to shield the records of the 94 journalists whose contacts got sucked up along with the 6 journalists who worked on the story.

Moreover, I think these underlying disputed facts — as well as the evidence that the gripe about the AP story (as opposed to the later stories that exposed MI5’s role in the plot) has everything to do with the AP scooping the White House — may well have led a judge to throw out the entire subpoena.

If the AP had been able to present proof, after all, that the White House (or even the CIA) had told them the story wouldn’t damage national security, then it would have had a very compelling argument that the public interest in finding out their source is less urgent than the damage this subpoena would do to the free press.

So I don’t know what would have happened. But I do know it is a real dispute that may well have a significant impact on the subpoena.

And that’s why we have courts, after all, to review competing claims.

Of course, the Obama Administration has an extensive history of choosing not to use the courts as an opportunity to present their case. Most importantly (and intimately connected to this story), the government has chosen not to present their case against Anwar al-Awlaki on four different occasions: the Nasser al-Awlaki suit, the Umar Farouk Abdulmutallab trial, the ACLU/NYT FOIAs, and now the wrongful death suit. This serial refusal to try to prove the claims they make about their counterterrorism efforts in Yemen doesn’t suggest they’re very confident that the facts are on their side.

Which may well be why DOJ chose to just go seize the phone contacts rather than trusting their claims to a judge.

I Wonder What Fahd Al-Quso Thought of the AP’s UndieBomb 2.0 Story?

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It turns out Fahd al-Quso, whom the government alleged was Al Qaeda in the Arabian Peninsula’s external operations director when he was killed in a drone strike May 6 of last year, never lived to see the AP’s UndieBomb 2.0 story, which presumably described a plot he masterminded. That’s because he died during the time period AP was delaying publication at the government’s request.

As part of its effort to show how ridiculous it is for the Administration to seize 20 phone lines of call records to investigate a story on which the AP ceded to White House requests, the AP released this timeline of Administration statements surrounding their UndieBomb 2.0 plot.

Most of the dates were previously known (and have appeared in my posts on the subject). But I believe this one–the date AP first went to the White House with the UndieBomb story–is new.

May 2, 2012: Federal government officials ask the AP to delay publishing a story about a foiled plot by al-Qaida’s affiliate in Yemen to destroy a U.S.-bound airliner, which the AP had recently discovered. They cite national security concerns. The AP agrees to temporarily delay publishing until national security concerns are allayed.

Which makes the timeline from that period look like this:

April 18: Greg Miller first reports on debate over signature strikes

Around April 20: UndieBomb 2.0 device recovered

Around April 22: John Brennan takes over drone targeting from JSOC

April 22: Drone strike that–WSJ reports, “Intelligence analysts [worked] to identify those killed” after the fact, suggesting possible signature strike

April 24: Robert Mueller in Yemen for 45 minute meeting, presumably to pick up UndieBomb

April 25: WSJ reports that Obama approved use of signature strikes

April 30: John Brennan gives speech, purportedly bringing new transparency to drone program, without addressing signature strikes

May 2: Government asks AP to delay reporting the UndieBomb 2.0 story, citing national security

May 6: Fahd al-Quso killed

May 7: Government tells AP the national security concerns have been allayed; AP reports on UndieBomb 2.0

May 8: ABC reports UndieBomb 2.0 was Saudi-run infiltrator

May 15: Drone strike in Jaar kills a number of civilians

While it was fairly clear in any case (and reporting had linked the UndieBomb 2.0 plot with Quso’s death), this timeline makes it crystal clear.

The delay was about killing Fahd al-Quso.

And yet, even after the AP waited 5 days to break the story, allowing the government to drone kill a human being in the interim, the Administration still launched a witch hunt against the AP for a story that became damaging only after John Brennan ran his blabby mouth.

AP Response to DOJ Reveals They COULDN’T Have Had Most Damaging Info Brennan Exposed

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The AP has a scathing reply to Deputy Attorney General’s claim that the subpoena he signed fulfilled DOJ guidelines on scope and notice. Among other details, it reveals the AP only learned via Cole’s letter that DOJ seized just portions of the call records of April and May 2012.

In addition, the AP makes the same point I keep making: the White House had told AP the risk to national security had passed and that it planned to release this information itself the next day.

Finally, they say this secrecy is important for national security. It is always difficult to respond to that, particularly since they still haven’t told us specifically what they are investigating.

We believe it is related to AP’s May 2012 reporting that the U.S. government had foiled a plot to put a bomb on an airliner to the United States. We held that story until the government assured us that the national security concerns had passed. Indeed, the White House was preparing to publicly announce that the bomb plot had been foiled.

The White House had said there was no credible threat to the American people in May of 2012. The AP story suggested otherwise, and we felt that was important information and the public deserved to know it.

Note what else is implied by the comment: the AP believed that the threat had posed a real threat, in contradiction to what the White House had been claiming at the time.

If they believed the plot was a real threat, though, then it means they didn’t know it was just a Saudi manufactured sting. The AP didn’t, apparently, know, the detail that Brennan’s blabbing led to the reporting of, that the plot was really just a sting led by a British Saudi infiltrator.

The White House had several choices last year.

They could have quietly informed the AP that the threat had actually been thwarted a week or so before May 1, which is one basis for their claim they had no credible threats of terrorist attacks; that would have allowed CIA to claim credit for thwarting the attack without making John Brennan look like a liar.

They could have just shut up, and dealt with fairly narrow push-back amid the hails of glory for intercepting a plot. (Note, even I only realized how central the May 1 detail was to Brennan’s pique now that I’ve read his confirmation testimony in conjunction with the original article.)

Or, in a panic, Brennan could do what he did, which led to the far more damaging details of this Saudi manufactured plot to be exposed.

It’s pretty clear Brennan chose the worst possible option, and the ensuing outrage is the real reason why AP is being targeted.

If UndieBomb 2.0 Is One of the Worst Leaks of Holder’s Career, Why Is John Brennan CIA Director?

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In a press conference today, Eric Holder didn’t let recusal from the UndieBomb 2.0 leak investigation stop him from commenting on it. Among other things, he claimed this one of the most serious leaks he has seen since he started as a prosecutor in 1976.

This was a very serious leak. A very, very serious leak. I’ve been a prosecutor since 1976, and I have to say that this is among, if not the most serious, it is within the top two or three most serious leaks I’ve ever seen. It put the American people at risk. And that is not hyperbole. It put the American people at risk.

But here’s the thing. According to his own sworn testimony, John Brennan had a key role in providing hints that led to the actually damaging parts of the leak.

I said there was never a threat to the American public as we had said so publicly, because we had inside control of the plot and the device was never a threat to the American public.

[snip]

I — I — what I’m saying is that we were explaining to the American public why that IED was not in fact a threat at the time that it was in the control of individuals. When — when we say positive control, inside control, that means that we (inaudible) that operation either environmentally or any number of ways. It did not in any way reveal any type of classified information. And I told those individuals and there are, you know, transcripts that are available of that conversation, “I cannot talk to you about the operational details of this whatsoever.”

Sure, Brennan claims this didn’t amount to sharing classified information. But he could have just said the plot was actually rolled up on April 22. Instead, he let slip that we (actually, the British and Saudis) had inside control, which led Richard Clarke to figure out what had happened.

Even if DOJ doesn’t consider Brennan a subject or target of this investigation (which is itself noteworthy), his part in the leak still shows really poor judgment and information security.

So if this leak was so damaging, why did a guy who had a central part in it get promoted?

The AP Grab: NSL versus Subpoena

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Update: In his letter responding to AP’s complaints, Deputy Attorney General James Cole says these were subpoenas. Cole tries to argue the scope of the subpoena was fair. But what he doesn’t explain is why the government didn’t give the AP notice or an opportunity to turn over the contacts voluntarily.

I want to return to a question I introduced in my post describing DOJ’s grab of call records from 20 AP phone lines.

The assumption has been that DOJ subpoenaed these call records. While that’s probably right, I still think it’s possible DOJ got them via National Security Letter, which DOJ has permitted using to get journalist contacts in national security investigations since fall 2011. I’ll grant that AP President Gary Pruitt mentions subpoenas twice in his letter, once specifically in connection with DOJ’s grab and once more generally.

That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.

The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen. [my emphasis]

But the entire point of Pruitt’s letter is to call attention to the way in which DOJ did not honor the spirit of its media guidelines, which are tied to subpoenas, not NSLs. That’s what the Domestic Investigations and Operations Guide says explicitly (PDF 166) when it talks about using NSLs with journalists: when using NSLs, the rules don’t apply.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

For a variety of reasons, I think it possible the AP doesn’t actually know how DOJ got its reporters’ contact information. And thus far, the most compelling argument (one Julian Sanchez made) that DOJ used a subpoena is that they did ultimately disclose the grab to the AP; with NSLs they wouldn’t have to do that, at least certainly not in the same time frame.

But Pruitt’s emphasis is sort of why I’m interested in this question: either DOJ used a subpoena and in so doing implicitly claims several things about its investigation, or DOJ used an NSL as a way to bypass all those requirements (and use this as a public test case of broad new self-claimed authorities). Both could accomplish the same objective — getting call records with a gag order — but each would indicate something different about how they’re approaching this investigation.

Here are DOJ’s own regulations about when and how they can subpoena a journalist or his call records. Some pertinent parts are:

(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.

(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

(g)(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.

(g)(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. [my emphasis]

US Attorney Ronald Machen statement about the grab largely echoes those parts of the regulations (though somehow he forgot to mention that “subpoenas should be as narrowly drawn as possible”).

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization unless doing so would pose a substantial threat to the integrity of the investigation. Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

So either DOJ used an NSL, which would give them a longer gag, fewer express limits on the scope of the request, and zero expectation of giving notice beforehand (in addition, obtaining NSLs from journalists in national security cases doesn’t appear to require Attorney General sign-off). In which case Machen is playing the same kind of word games the DIOG plays, acknowledging there are regulations the spirit of which DOJ appears to have violated.

Or Machen maintains the following about the grab:

  • DOJ has already checked the US person call records of the people known to be read into the UndieBomb plot and not found any obviously calls or emails implicating the journalists involved in the story and either hasn’t been able to access or hasn’t found any obvious clues in the potential Saudi, Yemeni, and British people read into the operation (note, some Saudis were on the record on this within days and Yemenis also appear to have leaked it).
  • Notifying the AP that DOJ was going to go get journalist contact information for two months, in an investigation that has been widely publicized for an entire year, would pose some threat to the investigation. Normally, such a claim is usually based on the premise that revealing the investigation at all would alert the targets who would otherwise not know about it, but that’s obviously not what’s going on here, because this has been one of the most public leak investigations in recent years.

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DOJ Goes Nuclear on Goldman and Apuzzo

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While the AP doesn’t say it in their report that DOJ got two months of unnamed reporters’ call records, but this effectively means they’ve gone nuclear on Goldman and Apuzzo for breaking a story the White House was going to break the following day anyway.

Prosecutors took records showing incoming and outgoing calls for work and personal numbers for individual reporters, plus for general AP offices in New York, Washington and Hartford, Conn. The government also seized those records for the main phone number for AP in the House of Representatives press gallery.

The Justice Department disclosed the seizure in a letter the AP received Friday.

[snip]

In the letter notifying the AP received Friday, the Justice Department offered no explanation for the seizure, according to Pruitt’s letter and attorneys for the AP. The records were presumably obtained from phone companies earlier this year although the government letter did not explain that. None of the information provided by the government to the AP suggested the actual phone conversations were monitored.

As a reminder, here’s a history of the White House’s attempts to dubiously claim they weren’t planning on releasing the information themselves, as they had the last time a Saudi infiltrator tipped us to a plot.

When the AP first broke the story on UndieBomb 2.0, it explained that it had held the story but decided to publish before the Administration made an official announcement on what would have been Tuesday, May 8.

The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way.

Once those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday. [my emphasis]

Since that time, the Administration has tried to claim they never intended to make an official announcement about the “plot.” They did so for a May 9 LAT story.

U.S. intelligence officials had planned to keep the bomb sting secret, a senior official said, but the Associated Press learned of the operation last week. The AP delayed posting the story at the request of the Obama administration, but then broke the news Monday.

[snip]

“We were told on Monday that the operation was complete and that the White House was planning to announce it Tuesday,” he said.

Then the White House tried misdirection for a Mark Hosenball story last week–both blaming AP for information about the Saudi infiltrator the AP didn’t break, and attributing Brennan’s comments implying the plot involved an infiltrator to hasty White House efforts to feed the news cyclespinrespond to the story.

According to National Security Council spokesman Tommy Vietor, due to its sensitivity, the AP initially agreed to a White House request to delay publication of the story for several days.

But according to three government officials, a final deal on timing of publication fell apart over the AP’s insistence that no U.S. official would respond to the story for one clear hour after its release.

[snip]
The White House places the blame squarely on AP, calling the claim that Brennan contributed to a leak “ridiculous.”

“It is well known that we use a range of intelligence capabilities to penetrate and monitor terrorist groups,” according to an official statement from the White House national security staff.

“None of these sources or methods was disclosed by this statement. The egregious leak here was to the Associated Press. The White House fought to prevent this information from being reported and ultimately worked to delay its publication for operational security reasons. No one is more upset than us about this disclosure, and we support efforts to prevent leaks like this which harm our national security,” the statement said.

The original AP story, however, made no mention of an undercover informant or allied “control” over the operation, indicating only that the fate of the would-be suicide bomber was unknown. [my emphasis]

Now, there are several problems with this latest White House story. The allegation of a quid pro quo rests on the premise that the Administration was also about to release the information; it’s just a different version of the request to hold the story until an official White House announcement. Furthermore, if the White House didn’t want this information out there, then why brief Richard Clarke and Fran Fragos Townsend, who went from there to prime time news shows and magnified the story?

Meanwhile, John Brennan, who leaked the most damaging part of this (that it was just a Saudi sting), has since been promoted to run the CIA, even though, at least according to James Clapper’s definition, he’s a leaker.

Also, note the language used here: “seized.” Not “subpoenaed.”

That, plus the description of these as “phone records” suggests DOJ may well have relied on a National Security Letter to get journalist contacts, as I’ve long been predicting they’ve been doing.

Update, per the more detailed AP update: Apparently the letter says they were subpoenaed.

Update: Actually, the letter itself doesn’t say they were subpoenaed, and given that no notice was provided, it seems like NSLs are a likely candidate.

Last Friday afternoon, AP General Counsel Laura Malone received a letter from the office of United States Attorney Ronald C. Machen Jr. advising that, at some unidentified time earlier this year, the Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists. The records that were secretly obtained cover a full two-month period in early 2012 and, at least as described in Mr. Machen’s letter, include all such records for, among other phone lines, an AP general phone number in New York City as well as AP bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives. This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department.

This entire leak investigation was always a witch hunt, because sources in the Middle East were blabbing about it anyway, because John Brennan was blabbing too, and because the White House planned to blab about it the following day.

But that, apparently, didn’t stop DOJ from throwing its most aggressive weapons against Adam Goldman and Matt Apuzzo, who first broke the story.